Face coverings for employees on public transport

Mike Sopp considers the issue of whether employers should be providing face masks or coverings for those employees who have to use public transport to get to work during the coronavirus pandemic.

As part of the measures to control the spread of Covid-19, from 15 June 2020 any person using public transport (with some exceptions) in England must wear a “face covering”.

Employers with employees who cannot work from home or who require workers in the workplace will need to recognise that a section of the workforce will have no option but to use public transport if they are to commute to work. A business decision will need to be made as to whether the organisation should be providing face coverings for these employees.

What counts as travelling for work?

Employees commuting to and from work are not normally deemed to be at work and the commute is not part of the working day for the purpose of the Working Time Regulations 1998.

Where employees are travelling for work in the course of their employment for example, from one workplace to another workplace, this will be deemed to be “business time”, with the employee being at work for the purpose of the Working Time Regulations 1998.

European case law (Federación de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL & anor) also confirms that employees travelling from home direct to appointments will also be deemed to be at work for the commuting time for the purposes of the Working Time Regulations 1998.

As employees will be deemed to be at work in these circumstances under the Working Time Regulations 1998, employers will also have a duty of care to those employees under the Health and Safety at Work, etc Act 1974.

Legal position of employers and extent of duty of care

Under the existing health and safety legislation, an employer’s duties to ensure the health, safety and welfare of its employees only extend to the workplace or where an employee is acting in the course of their employment, eg travelling from workplace to workplace.

Employers also have a common law duty to take reasonable care for the health and safety of their employees.

However, the employer also has an implied contractual duty not to act in a manner which is calculated or likely to destroy the relationship of trust and confidence which underpins all employment relationships. In the current situation, it is possible a court might conclude that the implied duties of care and to maintain trust and confidence require the employer to have regard to risks associated with an employee’s commute.

Employees have a right under s.44 of the Employment Rights Act 1996 (ERA) not to be subjected to any detriment for refusing to come to work in circumstances where they reasonably believe they are in “serious and imminent danger” that they could not reasonably have been expected to avert. It does not matter if the employer disagrees about the danger; the question is whether the employee’s perspective is reasonable.

This statutory right appears to have been designed to protect employees from urgent dangers at the workplace (eg fire or asbestos) where they have no reasonable option but to leave or refuse to return to work.

While the reference to “place of work” in s.44 might suggest it is limited to that situation, it is unclear whether it might also cover dangers posed by an employee’s commute to work or travelling while at work on public transport.

Are face coverings PPE?

Personal protective equipment (PPE) is legally defined as “all equipment which is intended to be worn or held by a person at work and which protects the user against one or more risks to their health or safety”.

Face coverings are not predominantly about protecting the wearer as much as the others around them; therefore they are a public health measure aimed at protecting others and fall outside the definition of PPE. They do not have any specified performance level.

This is confirmed in the British Standards Institution publication BSI Guide to Masks and Face Coverings for Use in the UK during the Covid-19 Pandemic, which states that “members of the public may use a face covering that is not classified as PPE or as a medical face mask”.

What should employers do?

It can be concluded that there are certain circumstances where an employee is clearly at work while travelling on public transport and therefore the employer has a duty of care to reduce the risks to that employee to as low as reasonably practicable.

The situation while commuting to and from work is not normally deemed to be at work but, as has been noted, the duty of care in the current circumstances has not been tested.

As part of the UK Government’s strategy for working safely during the Covid-19 pandemic, employers are being encouraged to support employees to seek alternative means of commuting to work other than public transport.

Where the use of public transport cannot be avoided, employers will need to determine what action they need to take, taking into account the above information.

UK Government guidance for safe working notes that the risks from Covid-19 need to be “managed through social distancing, hygiene and fixed teams or partnering, not through the use of PPE” and that “workplaces should not encourage the precautionary use of extra PPE to protect against Covid-19 outside clinical settings or when responding to a suspected or confirmed case of Covid-19”.

However, employers should consider supplying face coverings to employees if they have no option but to use public transport.